Can my Ex-Wife move to another Country with my Child?

Question:

I live in England and my ex-wife is from Toronto, Canada. Unfortunately, we recently underwent a divorce. She left England with our child to her home country without my permission. I am not able to provide my child with any support, care and security. I am unable to take care of his proper upbringing, schooling, and other guardianship duties. I tried moving there for the sake of my child but I can not move to that country myself because I am not allowed to work there.

If she moves here, I can provide her with living. But while she is there, and my son is raised there, he will be deprived of fatherly care and guardianship.
I want to know whether Islamically she is allowed to remain there without my permission. Can she let the child forgo his fatherhood care, security and support just because his mother wants to live and raise him in her home country?

Answer:

In the name of Allah, Most Compassionate, Most Merciful,

As explained in previous answers, the mother has a right of custody over a male child until he is capable of taking care of his own basic bodily functions and needs such as eating, dressing, and cleansing himself. This has been determined at seven (Islamic) years of age, since children are normally able to take care of themselves at this age.

From the age of seven Islamic years till he attains puberty, the father has a right of custody over him. After puberty, the boy, if he is mature and wise, can choose to live with whosoever he wishes, or live on his own.

In the case of a female child, the mother has a right of custody over her until she reaches the age of puberty (i.e. she starts menstruating). This has been approximated at nine (Islamic) years of age. Thereafter, the father has a right of custody over her until she marries. (Ibn Abidin, Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/566, Qadri Basha, Hanafi articles 498 & 499 & al-Mawsili, al-Ikhtiyar li ta’lil al-Mukhtar 3/237)

It was also explained previously that irrespective of who from the mother and father has custody-rights, the other party is entitled to the right of visitation according to mutual understanding and agreement. It is unlawful and a grave sin to deprive the other party of their visitation right.

In view of this very reason, and also in view of the fact that the father is responsible for the proper upbringing (tarbiya) and financial maintenance of the child, the jurists (fuqaha) have outlined rules in regards to whether the mother (during her period of custody) is allowed to move with the child to another region or not.

After a lengthy and somewhat tiresome discussion on the subject by Hanafi Imams: Tumurtashi, Haskafi and Ibn Abidin (may Allah have mercy on them all) in Radd al-Muhtar ala ‘l-Durr al-Mukhtar Sharh Tanwir al-Absar, Imam Ibn Abidin himself summarized the juristic ruling with the following:

“In clear and concise terms it could be said: A divorced woman is permitted to move (khuruj) with the child from a village to a nearby town/city, but not vice versa (i.e. from a town/city to a nearby village). And [she is permitted to move with the child] from one city to another city provided it is her hometown and he (the father of the child) had contracted marriage with her there…” (Radd al-Muhtar 3/570)

A few lines prior to the above text, he states:

“Two conditions are indispensable for the permissibility of [the mother of the child] moving to a distant city: It being her hometown, and the marriage being contracted there.” (Ibid)

Likewise, Shaykh Muhammad Qudri Basha explains in his standard codification of Hanafi personal law, al-Akham al-Shar’iyya fi ‘l-Ahwal al-Shakhsiyya that the mother is not allowed to move with the child without the father’s permission to a distant town/city, unless it is her hometown and he married her there, in which case she is permitted to move there without his consent, even if the town/city is distant from the father’s place of residence.

He further states that if where she intends to move is her hometown but the marriage was not contracted there, or the marriage was contracted there but it is not her hometown, then in both cases, she is not permitted to move there with the child without the child’s father’s permission, unless the place is nearby to the residence of the father in a manner that he is able to visit his child and return home before night. (See: al-Akham al-Shar’iyya fi ‘l-Ahwal al-Shakhsiyya, Item no 393)

So, in view of these texts of the Hanafi School, we may conclude by saying that if the (divorced) mother, during her period of custody, wants to move with the child to a nearby city or town where the child’s father is able to come, visit the child, and return home before night-time, she can do so without the father’s permission in all situations. If, however, she desires to move to a distant city or town where the child’s father is not able to come, visit the child, and return home before night-time, then she can only do so provided it is her hometown and provided her marriage with the child’s father was contracted there.

As such, if Toronto is your ex-wife’s hometown and your marriage to her was contracted there, then she is free to move there with your child without your consent. However, such issues are best resolved through mutual understanding, regard for one another, tact, love, and keeping the child’s interests in mind. If she does decide to move there with your child, both of you should try and come to some sort of mutual arrangement where the child is sent to live with you for some time during the year, for example.

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